State v. Flake

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) BILL CLARK FLAKE, ) ) Appellant. ) ) ) __________________________________) DIVISION ONE FILED: 06-29-2010 PHILIP G. URRY,CLERK BY: GH No. 1 CA-CR 08-0859 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2008-030778-001 SE The Honorable Steven P. Lynch, Judge Pro Tempore AFFIRMED Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section And Melissa Parham, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender Phoenix By Thomas K. Baird, Deputy County Public Defender Attorneys for Appellant S W A N N, Judge ¶1 Bill Clark Flake ( Appellant ) appeals his convictions of (1) three counts of Sexual Conduct with a Minor, dangerous crimes against children, class 2 felonies and violations of A.R.S. § 13-1405; (2) one count of Sexual Abuse, a class 3 felony and a violation of A.R.S. § 13-1404; and (3) two counts of Sexual Conduct with a Minor, class 6 felonies and violations of A.R.S. § 13-1405. For the reasons that follow, we affirm. FACTS1 AND PROCEDURAL BACKGROUND In 2007, Appellant s niece, T.,2 went to the police ¶2 because she was concerned that her cousin, D., was being abused by Appellant. When she was asked why she was concerned, T. told the police about two incidents in which Appellant abused her. The first incident occurred Appellant was babysitting. when T. was three or four and After Appellant dropped T. s brother off at school, Appellant slid his hand into T. s shorts and began fondling her vagina as he drove them home. episode occurred babysitting Appellant T. to when and join T. her her was five siblings. siblings or six As outside and T. was to The second Appellant was walking past play, Appellant grabbed her and began tickling her and blowing raspberries on 1 We view the facts in the light most favorable to sustaining the verdicts and resolve all reasonable inferences against Appellant. State v. Nelson, 214 Ariz. 196, 196, ¶ 2, 150 P.3d 769, 769 (App. 2007). 2 T. was twenty-one at the time of trial in 2008. 2 her stomach. Then he pushed her pants and underpants aside and began kissing her on her stomach and vagina and then licked her vagina. While she was with the police, T. made a confrontation call to Appellant and asked him about his relationship with D. During this call, Appellant admitted to abusing D. but denied abusing T.3 ¶3 In July 2007, J.4 went to the police and reported three instances in which instances occurred Appellant when digitally penetrated her. J. abused was six. her. Both The times, first two Appellant The third instance occurred when J. was eleven or twelve while she was watching a movie in the bedroom of her grandparents house. She and Appellant were lying on the bed, with J. in front of him, facing the screen. Appellant slid his hand down her shoulder and grabbed her breast and then rested his hand on her hip. ¶4 In July 2007, D. was picked up by Child Protective Services and Appellant interviewed abused her on by the at least police.5 two D. testified occasions. The that first occasion was in October 2006; the second occurred two months 3 When Appellant was questioned by police, however, Appellant admitted to abusing both T. and T. s younger sister, J. 4 At the time of trial, J. was eighteen. 5 At the time of trial, D. was seventeen. 3 later. In both instances, Appellant digitally penetrated D. while they were watching a movie. ¶5 On March 5, 2008, Appellant was indicted and charged with (1) one count of Molestation of a Child (a class 2 felony); (2) three counts of Sexual Conduct with a Minor (class 2 felonies); (3) one count of Sexual Abuse (a class 3 felony); and (4) two felonies). counts of Sexual Conduct with a Minor (class A five-day trial commenced on July 28, 2008. 6 During the course of the trial, the jury viewed a video recording of a police interview of Appellant in which he confessed to sexual contact with each of the three victims. The jury returned a guilty verdict on six of the seven counts, and a not guilty verdict on one count of Molestation of a Child. sentenced Appellant to a mitigated term The trial court of 15 years imprisonment, with 434 days of presentence incarceration credit, followed by two separate and consecutive 20-year prison terms. The court imposed suspended sentences of lifetime probation for each of the remaining counts. ¶6 On appeal, Appellant raises two issues that arise from the following events at trial. On the third day of trial, the father of J. and T. ( Father ) testified.6 During his testimony, the following exchange occurred: 6 Father is also Appellant s brother and D. s uncle. 4 THE STATE: Did you talk with your brother about any of these allegations? FATHER: No, I have not. THE STATE: Why is that? FATHER: I know my children, and in a matter like this I know they would not lie. I didn t feel I needed to. I believe my kid. DEFENSE COUNSEL: ultimate issue. Objection, judge. Opinion on the THE COURT: I ll overrule the objection, but ladies and gentlemen of [the] jury, obviously [Father s] testimony on his opinion of what his daughters truthfulness is should not impact your judging the facts of the case. ¶7 The prosecutor continued questioning Father and attempted to determine whether he was aware that anything might be amiss between his daughters and his brother: THE STATE: Okay. During the course of the, I guess, 18 to 20 years that [J.] and [T.] have been around, were you aware of any unusual activity between them and your brother Bill? FATHER: We came home from I don t remember where we had gone, whether it was dinner or grocery shopping or someplace, but the kids expressed DEFENSE COUNSEL: THE COURT: Objection. Hearsay. Sustained. FATHER: I don t know how to answer, other than what my kids told me. THE STATE: Just whether or not there was something you are aware of regarding the allegations? FATHER: Yes. 5 THE STATE: Regarding the allegations in this case or something else? FATHER: ¶8 Something else. The jury also heard the testimony of Detective Alonzo, who had conducted interviews of the three victims and Appellant. On direct examination, after detailing her training and experience investigating child sex crimes and with performing forensic and suspect interviews, she described demeanor during her interview with him. often paused vacillated before among answering volunteering her Appellant s She explained how he questions information, and waiting how for he the detective to offer him a choice of scenarios, and claiming he did not recall certain events.7 to this line of questioning. Defense counsel did not object He did, however, cross-examine the detective regarding her purpose for interviewing Appellant: DEFENSE COUNSEL: And when you went in that room to interrogate Bill, you went in there to get a confession? DETECTIVE: To get the truth. DEFENSE COUNSEL: confession? DETECTIVE: Well, you went in there to get a To get the truth. DEFENSE COUNSEL: Well, he told you from the get-go about [D.], correct? 7 Select portions of the suspect interview substantiating the detective s observations were admitted and published to the jury. 6 DETECTIVE: Correct. DEFENSE COUNSEL: And he denied doing anything with [J.] or [T.], correct? DETECTIVE: Initially. DEFENSE COUNSEL: DETECTIVE: Right. But you kept questioning him? Yes, I did. DEFENSE COUNSEL: You kept questioning him until he made the admission that we just saw on the TV? DETECTIVE: ¶9 Correct. The detective s testimony continued into the next day of trial, when the following exchange occurred during re-direct examination: THE STATE: When a suspect tells you in the investigation, when you say There s allegations against you, and he responds I don t remember, what does that indicate to you? DEFENSE COUNSEL: Objection. Speculation. THE COURT: Is this just a general question? THE STATE: At first, yes[.] THE COURT: I ll overrule it. THE STATE: Go ahead. DETECTIVE: In my experience with answers like that, that led me to believe that perhaps there s more there that they are not coming forth with. THE STATE: A[nd] that s why you continue on asking more questions? DETECTIVE: Yes. 7 ¶10 Appellant timely appeals. We have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031 (2010), and 13- 4033(A)(1). DISCUSSION I. Opinion Testimony ¶11 Appellant argues that the trial court erred when it allowed the State to elicit Father and Detective Alonzo. ¶12 improper opinion testimony from We disagree. We review the trial court's rulings on the relevance and admissibility of evidence for an abuse of discretion. State v. Rutledge, 205 Ariz. 7, 10, ¶ 15, 66 P.3d 50, 53 (2003). Testimony regarding the truthfulness of another witness is prohibited in Arizona. a statement made by State v. Boggs, 218 Ariz. 325, 335, ¶ 39, 185 P.3d 111, 121 (2008). Determining veracity and credibility lies within the province of the jury, and opinions about witness credibility are nothing more than advice to jurors on how to decide the case. Id. (citation omitted). A. ¶13 Father s Testimony Appellant contends that the trial court erred when it overruled his objection to Father s explanation of his reasons 8 for not discussing the allegations with his brother.8 He argues that Father impermissibly vouched for the reliability of his daughters statements, and that the limiting instruction was insufficient to eliminate the prejudice from such testimony. ¶14 Evidence inadmissible for one purpose may be admitted if admissible for another purpose. Ariz. 228, 234, ¶ 25, 99 P.3d 43, State v. Williams, 209 49 (App. 2004). Here, Father s testimony was relevant to his own credibility. One would expect a reasonable jury to question why a father would fail to confront an alleged abuser of his own daughters. To draw the sting from any such inquiry on cross-examination, it is understandable that the State would choose to address it during direct examination. To be sure, the question would have been beyond criticism if asked by the defense. The testimony was therefore relevant to explain why Father elected not to confront his brother, and the trial court correctly overruled Appellant s objection. ¶15 Moreover, upon properly overruling the objection, the court issued a limiting instruction sua sponte, admonishing the 8 Appellant asserts for the first time in his reply brief that Father s testimony regarding his reasons for declining to discuss the allegations with his brother was irrelevant and was therefore inadmissible on this ground. Although we need not address issues not presented in a party s opening brief, State v. Guytan, 192 Ariz. 514, 520, ¶ 15, 968 P.2d 587, 593 (App. 1998), we do so here because whether the testimony is relevant is material to the question whether the testimony was properly admissible on other grounds. 9 jury against considering Father s opinion as evidence of the veracity of his daughters. This, combined with the powerful extrinsic evidence of Appellant s guilt, including the victims testimony and Appellant s admissions, convinces us that Appellant was not unduly prejudiced by the testimony. ¶16 Accordingly, even were we to find error, it would be harmless. 776, See State v. Schroeder, 167 Ariz. 47, 50-51, 804 P.2d 779-80 (App. 1990) (holding that where trial court sustained defendant s objections to improper opinion testimony about victim s credibility and issued a curative instruction, the error was harmless); see also State v. Herrera, 203 Ariz. 131, 135, ¶¶ 7-8, 51 P.3d 353, 357 (App. 2002) (holding that trial court did not abuse its discretion when it promptly issued a curative instruction after sustaining improper comment on defendant s guilt). an objection to an We conclude the trial court did not abuse its discretion in overruling Appellant s objection to Father s testimony. B. Detective Alonzo s Expert Testimony ¶17 Appellant also argues that the trial court committed error when it permitted Detective Alonzo to testify during redirect about criminal suspects behavior during interrogations and specifically about Appellant s demeanor. that this amounted to an impermissible 10 Appellant contends comment on the credibility of the defendant and an invasion of the province of the jury. ¶18 We disagree. The demonstrate defense that Detective gaining a confession. been calculated attempted to on Alonzo cross-examination acted with the to purpose of That line of questioning appears to have persuade the jury that Detective Alonzo persisted in her questioning in an effort to wear down Appellant and get him to confess to acts he did not recall. Faced with this attack on the detective s credibility, the State properly rehabilitated her by asking questions pertaining to her approach to questioning suspects who responded to questions by stating they did not recall. ¶19 On re-direct examination, Detective Alonzo testified that in her experience, when suspects state that they cannot recall certain withholding events, information further in this area. this -- may indicate prompting her to that they question are them And despite Appellant s contention that the detective was unqualified to testify as an expert, Detective Alonzo s extensive experience with investigating child sexual abuse and with conducting forensic and suspect interviews qualified her to testify as an expert with respect to behaviors manifested by suspects during interviews. See State v. Knapp, 114 Ariz. 531, 541, 562 P.2d 704, 714 (1977) (trial court has wide discretion to determine when expert testimony from officer 11 on interrogation techniques is warranted); cf. State v. Kevil, 111 Ariz. 240, 246-48, 527 P.2d 285, 291-93 (1974) (holding that the trial court did not abuse its discretion by permitting a police officer, an undisclosed expert witness, to testify about an objectively discernable pattern in certain robberies which are well known throughout the law enforcement community. ). ¶20 While testimony Appellant invaded the contends province that of Detective the jury Alonzo s because it impermissibly commented on Appellant s credibility, the trial court clarified and the State agreed that the testimony to which Appellant objected pertained to the significance of a suspect claiming not to recall certain events, not to the defendant in Accordingly, we find no abuse of discretion.9 this case. II. Prosecutorial Misconduct ¶21 Appellant also contends that the State engaged in prosecutorial misconduct when it improperly elicited other act evidence during Father s testimony. ¶22 When a timely We disagree. objection is made, reversal is warranted if a reasonable likelihood exists that the misconduct could have affected the jury's 9 verdict, thereby denying the The State contends that this issue was not properly preserved because Appellant only objected to Detective Alonzo s testimony on the grounds of speculation; the State therefore argues that we should review only for fundamental error. Because we conclude that Appellant s claim fails to withstand even an abuse of discretion analysis, this argument is moot. 12 defendant a fair trial. State v. Speer, 221 Ariz. 449, 458, ¶ 42, 212 P.3d 787, 796 (2009) (citation omitted). Absent such objection, our review is limited to fundamental error. establish fundamental error, Appellant must Id. demonstrate To that fundamental error occurred and that it caused him prejudice. State v. Henderson, 210 Ariz. 561, 567, ¶ 20, 115 P.3d 601, 607 (2005). ¶23 Prosecutorial misconduct sufficient to justify reversal must be so pronounced and persistent that it permeates the entire atmosphere of the trial. 608, 616, 944 P.2d 1222, 1230 State v. Lee, 189 Ariz. (1997) (internal quotation marks omitted). (citation omitted) Prosecutorial misconduct is not merely the result of legal error, negligence, mistake, or insignificant impropriety, but, taken as a whole, amounts to intentional conduct which the prosecutor knows to be improper and prejudicial, and which he pursues for any improper purpose with indifference mistrial. 09, 677 to a significant resulting danger of Pool v. Superior Court (State), 139 Ariz. 98, 108P.2d 261, 271-72 (1984) (footnote omitted). To determine whether the alleged misconduct constitutes fundamental error, we focus on the probability that it influenced the jury and whether the conduct denied the defendant a fair trial. State v. Wood, 180 Ariz. 53, 66, 881 P.2d 1158, 1171 (1994). 13 ¶24 Appellant contends that the prosecutor impermissibly called the jury s attention to inadmissible other act evidence during whether his direct Father was examination aware of of any Father where improprieties he inquired between his daughters and his brother. When Father responded affirmatively, the Regarding case prosecutor or clarified, something else? And the Father allegations responded, in this Something else. ¶25 Ariz. R. Evid. 404(b) provides a general prohibition against admitting evidence of other acts to show action in conformity therewith. 10 While the prosecutor s follow-up question, clarifying whether the allegations pertained to this case or something else was perhaps imprudent, we discern no fundamental error. There was no evidence that the prosecutor intentionally engaged in the improper conduct or that he did so with indifference or the specific intent to prejudice Appellant. See State v. Roque, 213 Ariz. 193, 228, ¶ 155, 141 P.3d 368, 403 (2006). other Appellant does not raise any additional references to act evidence. This single 10 question and response With respect to character evidence in sexual abuse cases, however, evidence of other acts may be admitted to show that the defendant had a character trait giving rise to an aberrant sexual propensity to commit the offense charged. Ariz. R. Evid. 404(c). But because of the vague nature of Father s response, there was insufficient information to determine that Appellant committed relevant other acts. Accordingly, Father s testimony would not be admissible pursuant to Rule 404(c), and we limit our discussion to Rule 404(b). 14 standing alone does not amount to prosecutorial misconduct. Because we find no prosecutorial misconduct, we conclude there was no fundamental error. CONCLUSION ¶26 For the foregoing reasons, we affirm. /s/ ___________________________________ PETER B. SWANN, Judge CONCURRING: /s/ ____________________________________ PATRICIA K. NORRIS, Presiding Judge /s/ ____________________________________ DANIEL A. BARKER, Judge 15

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